Terms and Conditions

xBrezzo Balance Sheet Builder Terms and Conditions

These xBrezzo Terms and Conditions (“Terms”), together with any mutually agreed ordering document that incorporates or attaches these Terms (“Order” and together with these Terms, the "Agreement") is a binding contract between the customer identified in the Order ("Customer") and xBrezzo, LLC (“xBrezzo”).

This Agreement becomes effective upon the execution of an Order between Customer and xBrezzo. The person executing an Order represents and warrants that they are authorized to enter into this Agreement on behalf of Customer.

1. License Grant and Scope.

A.     Scope of License.  This Agreement governs Customer’s access to and use of xBrezzo’s balance sheet builder built by xBrezzo using Microsoft Excel (“Application”), and any training or consulting services provided by xBrezzo related thereto (“Services”). Use of the Application requires that Customer have an active license to use Microsoft Excel, which license is not provided by xBrezzo. xBrezzo has no liability for Microsoft Excel or Customer’s use thereof.

B.     Third-Party Payment Provider.  xBrezzo uses a third-party payment provider to collect payment information for each Order.  xBrezzo does not receive any personally identifiable information about Customer from its third-party payment provider.  Any information provided to a payment screen may be subject to the terms and conditions and privacy policies of such third-party payment provider.

2.     Access and Use.

A.     Authorized Users. Subject to Customer’s compliance with the terms and conditions of this Agreement, xBrezzo hereby grants Customer a revocable, non-exclusive, non-transferable, non-sublicensable, limited right to access and use the Application and Services during the Term solely for Customer’s internal business operations by Customer and up to two of Customer’s support staff (paralegal and/or non-lawyer assistant) who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to this Agreement (“Authorized Users”) for Customer’s internal business purposes only in connection with serving Customer’s own clients, and to generate such balance sheets, reports or print-outs created through such use.  Customer may copy and save reasonable numbers of any generated balance sheet as necessary to support Customer’s clients in the course of providing services to Customer’s clients. For clarity, Customer may generate any number of balance sheets using its authorized copies of the Application.

B.     Use Restriction.  Customer shall not, and shall not permit any Authorized Users or any other person, to use the Application, any software component of the Application, or any documentation made available by xBrezzo for any purposes beyond the scope of the access granted in this Agreement. Customer shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) copy, modify, or recreate any software component of the Application or any documentation provided by xBrezzo, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Application except as expressly permitted under this Agreement; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Application, in whole or in part; (iv) remove any proprietary notices from the Application or any output; (v) use the Application in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law, regulation, or rule; or (vi) to create a competitive product or service offering of the Application.

C.     Reservation of Rights. xBrezzo reserves all rights not expressly granted to Customer in this Agreement with regard to the Application, documentation, and any and all intellectual property provided to Customer or any other Authorized User in connection with the Services (“xBrezzo IP”).

3.     Customer Responsibilities.

Customer is responsible and liable for all uses of the Application resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Authorized Users. Customer shall use reasonable efforts to make all Authorized Users aware of this Agreement's provisions as applicable to such Authorized User's use of the Application and shall cause Authorized Users to comply with such provisions. Customer will not sell or transfer its access to or any copy of the Application to any other person or entity other than its own Authorized Users. Customer will notify xBrezzo immediately of any unauthorized access to or use of the Application, and shall reasonably cooperate with xBrezzo to obtain the return or destruction of any unauthorized copy of the Application. Customer represents and warrants that it has sufficient rights to submit all inputs to xBrezzo and that it is responsible for validating the accuracy of all inputs prior to submitting an Order.

4.     Fees and Payment.

All fees are payable in advance in the manner set forth in the Order and are non-refundable unless otherwise agreed by xBrezzo in writing. Fees for any Renewal Term (as defined below) will be invoiced and payable in advance at the beginning of each Renewal Term.  In the event that Customer exceeds the number of Authorized Users, Customer shall pay xBrezzo for the excess use on a pro-rata basis.  Customer shall reasonably cooperate with and provide information regarding its Authorized Users and number of copies of the Application upon xBrezzo’s reasonable request (but no more than once per each Renewal Term).

5.     Term & Termination.

A.     Term.  The term of this Agreement will commence on the date of Customer’s Order, and unless Customer’s license is terminated in accordance with this Agreement, will continue indefinitely for any version of the balance sheet builder provided to the Customer without a specific term provided in the Order (“Term” for any Order without a specified initial term). xBrezzo reserves the right to impose term limitations in future versions of the Application and the following parameters shall apply to any version of the Application provided to the Customer with notification of an initial term set forth in such Order (“Initial Term”). For any term-bound license identified in an Order, upon expiration of the Initial Term, this Agreement shall automatically renew for successive terms equal in length to the Initial Term unless either party gives the other at least thirty (30) days’ written notice of its intent not to renew (“Renewal Term” and together with the “Initial Term,” the “Term” for a term-bound license). xBrezzo may increase its pricing applicable to any Renewal Term by providing Customer at least sixty (60) days prior written notice of the proposed increase.

B.     Termination of Perpetual Licenses.  For perpetual licenses, xBrezzo reserves the right to terminate the Agreement upon written notice to Customer if Customer violates the restrictions of Section 2.B.  Customer may terminate a perpetual license at any time by discontinuing the use of the Application and complying with the requirements of Section 5(E).

C.     Termination of Term-Bound Licenses.  For term-bound licenses, in addition to any other express termination right set forth in this Agreement:  either Party may terminate this Agreement: (i) effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach: (a) is incapable of cure; or (b) being capable of cure, remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach (for clarity, Customer’s failure to pay any amounts due constitutes a material breach); or (ii) effective immediately upon written notice to the other Party, if the other Party: (a) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (b) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (c) makes or seeks to make a general assignment for the benefit of its creditors; or (d) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.

D.     Survival. Any right, obligation, or required performance of the parties in this Agreement which, by its express terms or nature and context is intended to survive termination or expiration of this Agreement, will survive any such termination or expiration.

E.     Effect of Termination.  Upon expiration or termination of this Agreement, Customer shall delete or destroy its copies of the Application (for clarity, Customer may keep any reports generated by the Application) and if requested by xBrezzo, certify its compliance with this requirement.

6.     Confidential Information.

A.     Definition. “Confidential Information” means any and all documents, information, or communications exchanged between the parties as a result of this Agreement, including but not limited to any information relating to xBrezzo’s software plans, designs, costs, prices and names, finances, marketing plans, business opportunities, personnel, research, development or know-how, and relating to Customers finances, marketing plans, business opportunities, personnel, research, development or know-how whether or not marked confidential or proprietary

B.     Confidentiality. A party shall not disclose or use any Confidential Information of the other party except as reasonably necessary to perform its obligations or exercise its rights pursuant to this Agreement except with the other party's prior written permission. Except as may be permitted by and subject to its compliance with Section 6(d), not disclose or permit access to Confidential Information other than to its employees who: (i) need to know such Confidential Information for purposes of this Agreement; (ii) have been informed of the confidential nature of the Confidential Information and the obligations under this Agreement; and (iii) are bound by confidentiality and restricted use obligations at least as protective as the terms of this Agreement.

C.     Protection. Each party agrees to protect the Confidential Information of the other party in the same manner that it protects its own Confidential Information of like kind, but in no event using less than a reasonable standard of care.

D.     Compelled Disclosure. In the event that a party is required by law to make any disclosure of any of the Confidential Information of the other party, by subpoena, judicial or administrative order or otherwise, prior to making such disclosure, the party shall promptly provide the other party with prior notice of such compelled disclosure (to the extent legally permitted) and provide reasonable assistance, at the other party's cost, if the other party wishes to contest the disclosure.

E.     Exclusions. Confidential Information shall not include any information that:  (i) is or becomes generally known to the public without breach of any obligation owed to the other party; (ii) was known to a party prior to its disclosure by the other party without breach of any obligation owed to the other party; (iii) was independently developed by a party without breach of any obligation owed to the other party; or (iv) is received from a third party without breach of any obligation owed to the other party.’

F.     Equitable Relief.  Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 6 or, in the case of Customer, Section 2(b), would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to seek equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.

7.     Intellectual Property Rights.

xBrezzo IP.  As between xBrezzo and Customer, (a) xBrezzo owns all right, title, and interest, including all intellectual property rights, in and to the xBrezzo IP, and (b) Customer owns all right, title, and interest, including all intellectual property rights, in and to Customer’s inputs. Any information, suggestions, guidance, enhancement requests, recommendations or other feedback provided by Customer or its Authorized Users (“Feedback”) may be used by xBrezzo on an unrestricted basis in xBrezzo’s sole discretion. Any intellectual property, including patents, trademarks, copyrights or other proprietary or ownership rights, in any improvements, updates, modifications, or enhancements relating to or concerning the Services, whether or not resulting from or incorporating any Feedback, will belong to and be retained solely by xBrezzo.

8.     Limited Warranty and Disclaimer.

A.     Limited Warranty.  During the Term, xBrezzo warrants that Reports will reflect Client’s inputs to the Application. Customer’s sole and exclusive remedy and xBrezzo’s entire liability for any breach of this performance warranty shall be for xBrezzo to make commercially reasonable efforts to resolve any replicable non-conformity identified by Client and to replace Customer’s copy of the Application within a reasonable time of xBrezzo’s receipt of Customer’s report of the nonconformity. The foregoing warranty shall not apply to the extent that the root cause of an inaccurate Report is due to inaccurate or incomplete data provided by Customer, or any changes or modifications to the Application made by Customer or any Authorized User without xBrezzo’s express written consent or direction.

B.     DISCLAIMER.  EXCEPT AS OTHERWISE AGREED HEREIN, THE REPOTS AND SERVICES ARE PROVIDED "AS IS" AND XBREZZO SPECIFICALLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. XBREZZO SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. XBREZZO MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES, REPORTS, OR ANY RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER OR ANY OTHER PERSON'S OR ENTITY'S REQUIREMENTS (INCLUDING ANY COURT’S OR STATUTORY REQUIREMENTS), OR ACHIEVE ANY INTENDED RESULT. The information and results provided by the APPLICATION do not and are not intended to constitute legal or tax advice; instead, all information, content, and materials available through use of the APPLICATION are for general informational purposes only and must be validated by CUSTOMER.  The APPLICATION may not constitute or comply with the most up-to-date tax laws, regulations, or guidance, or be compliant with the requirements of any particular jurisdiction.  Use of, and access to, the APPLICATION does not create any attorney-client relationship between xBrezzo and any person.

9.     Indemnity.

A.     xBrezzo Indemnity.  xBrezzo shall indemnify, defend, and hold harmless Customer from and against any and all losses, damages, liabilities, and costs (including reasonable attorneys' fees) ("Losses") incurred by Customer resulting from any third-party claim, suit, action, or proceeding ("Third-Party Claim") that the Application, or any use of the Application in accordance with this Agreement, infringes or misappropriates such third party's US intellectual property rights, provided that Customer promptly notifies xBrezzo in writing of the claim, cooperates with xBrezzo, and allows xBrezzo sole authority to control the defense and settlement of such claim. If such a claim is made or appears possible, Customer agrees to permit xBrezzo, at xBrezzo's sole discretion, to (i) modify or replace the Application, or component or part thereof, to make it non-infringing, or (ii) obtain the right for Customer to continue use it materially as contemplated by this Agreement. If xBrezzo determines that none of these alternatives is reasonably available, xBrezzo may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer. This Section 9(A) will not apply to the extent that the alleged infringement arises from: (w) use of the Application in combination with data, software, hardware, equipment, or technology not provided by xBrezzo or authorized by xBrezzo in writing; (x) modifications to the Application not made by xBrezzo; (y) use of any version other than the most current version of the Application delivered to Customer; or (z) third-party products (e.g., Microsoft Excel). THIS SECTION 9(A) SETS FORTH CUSTOMER’S SOLE REMEDIES AND XBREZZO'S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE APPLICATION OR CUSTOMER’S USE THEREOF IN COMPLIANCE WITH THE TERMS OF THIS AGREEMENT INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.

B.     Customer Indemnification. Customer shall indemnify, hold harmless, and, at xBrezzo's option, defend xBrezzo from and against any Losses resulting from any Third-Party Claim based on Customer’s or any Authorized User's: (i) negligence or willful misconduct; (ii) use of the Application or Reports in a manner not authorized or contemplated by this Agreement; (iii) use of the Application in combination with data, software, hardware, equipment, or technology not provided by xBrezzo or authorized by xBrezzo in writing; (iv) modifications to the Application made by or on behalf of Customer without xBrezzo’s express written consent or instruction, provided that Customer may not settle any Third-Party Claim against xBrezzo unless such settlement completely and forever releases xBrezzo from all liability with respect to such Third-Party Claim or unless xBrezzo consents to such settlement, and further provided that xBrezzo will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.

10.   Limitations of Liability.

NEITHER PARTY WILL BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (A) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (B) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (C) LOSS OF GOODWILL OR REPUTATION; OR (D) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. NEITER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID OR PAYABLE TO XBREZZO UNDER THIS AGREEMENT IN THE SIX (6) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS SHALL NOT APPLY TO A PARTY’S INDEMNIFICATION OBLIGATIONS HEREUNDER.

11.   Miscellaneous.

Each party shall comply with all applicable laws, regulations, and rules that apply to the use or provision of the Services and Reports. The parties are independent contractors. This Agreement does not create a partnership, joint venture, agency, fiduciary or employment relationship between the parties. These Terms are governed by and construed in accordance with the laws of Minnesota without giving effect to any choice or conflict of law provision or rule. Any legal suit, action or proceeding arising out of or related to this Agreement shall be instituted exclusively in the federal courts of the Minnesota. Customer hereby waives any and all objections to the exercise of jurisdiction over Customer by such courts and to venue in such courts. This Agreement constitutes the entire agreement and understanding between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. The invalidity, illegality, or unenforceability of any provision herein does not affect any other provision herein or the validity, legality, or enforceability of such provision in any other jurisdiction. No amendment or modification is effective unless in writing signed by both parties.